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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK AMENDMENT (PROHIBITING COVID-19 VACCINE DISCRIMINATION)
BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Canavan, Antic and Rennick)
FAIR WORK AMENDMENT (PROHIBITING COVID-19 VACCINE
DISCRIMINATION) BILL 2023
OUTLINE
This Bill seeks to amend the Fair Work Act 2009 by adding COVID-19 vaccination status as
an attribute protected from discrimination.
This Bill does not change the overarching object of the Fair Work Act 2009, as set out in Part
1, Division 2, section 3, which is "to provide a balanced framework for cooperative and
productive workplace relations that promotes national economic prosperity and social
inclusion for all Australians" by, among other things, "providing workplace relations laws
that are fair to working Australians, are flexible for businesses, promote productivity and
economic growth for Australia's future economic prosperity and take into account Australia's
international labour obligations."
This Bill explicitly provides that "COVID-19 vaccination status" cannot be used by an
employer to take "adverse action" against an employee or prospective employee. Such
"adverse action" includes not hiring a prospective employee, dismissing an employee, and
altering the position of the employee to the employee's prejudice.
This Bill seeks to reinforce workers' rights to refuse a workplace direction where it is not a
reasonable and justified requirement of the job. It leaves no doubt for employees and
employers that vaccine mandates must not be in place unless it is an inherent requirement of
the position they hold and the tasks they undertake in that position.
The protection offered by this Bill generally remains subject to the limits imposed on other
discrimination grounds in the Fair Work Act 2009. An employer, for example, will not be in
breach of the anti-discrimination grounds where the employer can prove that COVID-19
vaccination is an inherent requirement of the position.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying that the short title of the proposed Act is to
be the Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Act 2023.
Clause 2: Commencement
2. Each provision of the proposed Act would commence on the day after the Act
receives the Royal Assent.
Clause 3: Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in
the applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Fair Work Act 2009
Item 1 - Section 12
4. This item inserts a definition of COVID-19 vaccination status into the Fair Work Act
2009.
Item 2 - Subsection 153(1)
5. This item amends subsection 153(1) of the Fair Work Act 2009 to provide that a
modern award must not include terms that discriminate against an employee because of, or
for reasons including, the employee's COVID-19 vaccination status. This provision relates to
national system employees and national system employers (see section 133).
6. This amendment does not change the effect of paragraph 153(2)(a) which provides
that a term does not discriminate against an employee if the reason for the discrimination is
the inherent requirements of the particular position held by the employee.
Item 3 - Subsection 195(1)
7. This item amends subsection 195(1) of the Fair Work Act 2009 to provide that a term
of an enterprise agreement is a discriminatory term (and therefore an unlawful term) to the
extent that it discriminates against an employee because of, or for reasons including, the
employee's COVID-19 vaccination status. This provision relates to national system
employees and national system employers (see section 170).
8. This amendment does not change the effect of paragraph 195(2)(a) which provides
that a term does not discriminate against an employee if the reason for the discrimination is
the inherent requirements of the particular position held by the employee.
Item 4 - Subsection 351(1)
9. This item amends subsection 351(1) of the Fair Work Act 2009 to provide that an
employer must not take adverse action against an employee or prospective employee because
of the person's COVID-19 vaccination status. The concept of "adverse action" is set out in
section 342 of the Act and covers a broad range of matters, for example not hiring a
prospective employee, dismissing an employee or altering the position of the employee to the
employee's prejudice.
Item 5 - Paragraph 351(2)(a)
10. This item amends paragraph 351(2)(a) of the Fair Work Act 2009 to provide that the
prohibition on discrimination based on COVID-19 vaccination status applies regardless of
whether there is another anti-discrimination law already making that discrimination unlawful.
11. This amendment does not change the effect of paragraph 351(2)(b) which provides
that a term does not discriminate against an employee if the reason for the discrimination is
the inherent requirements of the particular position held by the employee.
Item 6 - Paragraph 578(c)
12. This item amends paragraph 578(c) of the Fair Work Act 2009 to include COVID-19
vaccination status along with other protected attributes. This means that in performing its
functions under the Fair Work Act 2009, the Fair Work Commission would be required to
take into account the need to respect and value the diversity of the work force by helping to
prevent and eliminate discrimination on the basis of COVID-19 vaccination status.
Item 7 - Paragraph 772(1)(f)
13. This item amends paragraph 772(1)(f) of the Fair Work Act 2009 to provide that an
employer must not terminate an employee's employment for the reason of the employee's
COVID-19 vaccination status.
14. This amendment does not change the effect of paragraph 772(2)(a) which provides
that a term does not discriminate against an employee if the reason for the discrimination is
the inherent requirements of the particular position held by the employee.
Item 8 - Section 789HB (at the end of the heading)
15. This item amends the heading to section 789HB of the Fair Work Act 2009. It is
consequential on item 9 of Schedule 1.
Item 9 - At the end of Part 6-4E
16. This item adds new section 789HC to Part 6-4 of the Fair Work Act 2009.
17. Subsections 789HC(1) to (3) support the expansion of the measures relating to certain
protected attributes amendments to encompass COVID-19 vaccination status as a protected
attribute where a referral by a State would not provide support.
18. Subsections 789HC(4) to (7) extend the protection against discrimination on the basis
of COVID-19 vaccination status under section 351 of the Fair Work Act 2009 to employers
and employees that otherwise would not be covered, and in particular would extend the
protection to State public sector employers and employees even where there is no referral by
a State in relation to this. The protection in section 351 applies to a broader range of adverse
actions than just termination (including dismissal, altering an employee's position to their
prejudice, or discriminating against an employee).
19. Subsection 789HC(4) provides for this protection to apply in relation to any action
taken in a State. This would, for example, cover action taken in a State by a State public
sector employer.
20. Subsection 789HC(5) provides for State and Northern Territory police officers, who
are not generally considered to be "employees", to be covered by section 351 (which deals
with "employees") in relation to discrimination on the basis of COVID-19 vaccination status,
and for the relevant Commissioner of the police service to be their employer. Note that this
does not apply to the ACT police officers who are deemed to be "employees" of the
Australian Federal Police, which is a Commonwealth employer and would already be
covered by section 351.
Item 10 - In the appropriate position in Schedule 1
21. This item inserts new Part 14 into Schedule 1 to the Fair Work Act 2009.
22. Subclause 86(1) provides that the amendments of the Fair Work Act 2009 made by
Schedule 1 to the Bill would apply on and after commencement, subject to subclauses 86(2)
and (3).
23. Subclause 86(2) provides that the amendments of section 195 of the Fair Work Act
2009 made by Schedule 1 to the Bill apply to an enterprise agreement made on or after
commencement.
24. Subclause 86(3) provides that the amendments of section 351 of the Fair Work Act
2009 made by Schedule 1 to the Bill apply to adverse action taken on or after
commencement.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The purpose of this Bill is to amend the Fair Work Act 2009 by adding COVID-19
vaccination status as an attribute protected from discrimination.
Human rights implications
The Bill engages the following rights:
• the right to the enjoyment of just and favourable conditions of work under
Articles 6 and 7 of the International Covenant on Economic Social and Cultural
Rights (ICESCR);
• the right to the highest attainable standard of physical and mental health under
Article 12 of the ICESCR;
• the right to an effective remedy under Article 2(3) of the International Covenant
on Civil and Political Rights (ICCPR) and Article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) and right
to a fair hearing under Article 14(1) of the ICCPR;
• the right to freedom of expression under Article 19 of the ICCPR; and
• the right to equality and non-discrimination under Article 2 of the ICCPR and
Article 2 of the ICESCR and Article 26 of the ICCPR.
The content of the right to work, the right to just and favourable conditions of work and the
right to freedom of association in the ICESCR and ICCPR can be informed by specific
obligations in treaties of the International Labour Organisation (ILO).
Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the right to
work and to take appropriate steps to safeguard this right. The United Nations Committee on
Economic, Social and Cultural Rights has stated that the right to work in Article 6(1)
encompasses the need to provide the worker with just and favourable conditions of work.
The United Nations Committee on Economic Social and Cultural Rights in General Comment
18 has also stated that the right to work includes:
"the right not to be deprived of work unfairly. This definition underlines the fact that
respect for the individual and his dignity is expressed through the freedom of the
individual regarding the choice to work, while emphasizing the importance of work
for personal development as well as for social and economic inclusion."
There can also be no discrimination in access to and maintenance of employment on the
grounds enumerated in Article 2(2) of the ICESCR.
Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of
everyone to the enjoyment of just and favourable working conditions.
Conclusion
This Bill is compatible with human rights because it seeks to reinforce, for employees and
employers, on anti-discrimination grounds, that vaccine mandates must not be in place unless
it is an inherent requirement of the position they hold and the tasks they undertake in that
position. An employer will not be in breach of the anti-discrimination grounds where the
employer can prove that COVID-19 vaccination is an inherent requirement of the position.
Senators Canavan, Antic and Rennick